Airline Tells Already-Ticketed Passengers To Pay Extra For Fuel As Oil Prices Soar — Or Be Denied Boarding

European low cost airline Volotea has crossed a line I’ve never seen from a commercial carrier before. They’re trying to charge customers extra for fuel that already bought their tickets. They say they’ll deny boarding to anyone that doesn’t pay an extra €7 to fly because the cost of jet fuel has gone up so much.

And their contract of carriage says they can do it. Is that even legal?

We’re seeing airlines all over the world try to raise fares, add fuel surcharges to new ticket purchases (including award tickets) and raise bag fees – but those are for future travel, not already purchased itineraries.

• Volotea’s terms say that, in the event of “extraordinary” fuel price variation, it can apply a limited and temporary adjustment before departure.

• Passengers are supposed to have been informed of this during booking.

• The amount can go up or down (they have never refunded a customer because fuel got cheaper)

• This cuts against their standard terms that fares are changeable only until booking confirmation and that the ticket price is paid in full when the booking is confirmed.

Here’s a message sent to customers that have already purchased tickets:

Augmentation du prix de billet d’avion après achat
by
u/Separate_Plenty8428 in
conseiljuridique

Some people discussing this seem to say that ‘it’s in the terms, you agreed to it’ while others feel that ‘a final ticket price is supposed to be final’ and terms and conditions are abusive.

I much like flying Volotea. They’re a low cost carrier but they really lean into it. And they have interesting routes that get you places you might not otherwise be able to fly. For instance last summer I used them to go from Venice to Nice. That’s just a 283 mile flight, but no one else was scheduled on the route, and a train runs over 8 hours (which isn’t ideal with a then-barely one year old). But I would have felt that this was extremely abusive.

This Is Not Something Airlines Do

Airlines will more often say that increases in taxes after purchase can be collected from a customer. For instance,

• Ryanair’s terms say a government tax increase before departure may have to be paid or the passenger can opt not to travel and get a refund.
  
• easyJet says it may require payment if government tax increases after booking
  
• Wizz Air’s conditions say taxes, charges or fees imposed by governments or airport operators between itinerary issuance and travel can be collected even on already purchased tickets, and that non-payment can lead to refusal of carriage.
  
• Volotea also has an airport fee and tax clause.

What I don’t think I’ve ever seen is retroactive fuel cost passthrough on already purchased tickets. In the U.S., the Department of Transportation generally bans post-purchase price increases.

This Probably Isn’t Legal

The notice above is in French, I flew Volotea last summer to France, and for French consumers local law seems pretty clearly against this.

Under French law, a fuel surcharge is not a tax (obviously) so it’s part of the ticket price, and that for a standalone flight, if there is a fuel surcharge, it is applied at the moment of purchase and no later price revision can occur. That’s in contrast to package travel, where price revision can happen subject to the Tourism Code’s rules.

It also seems to violate European Union price transparency rules. EU passenger rights say that the published price must include all unavoidable and foreseeable taxes, charges, surcharges and fees and that the passenger should not later discover further charges added to a chosen flight.

Volotea’s position is going to be that it’s governed by Spanish law, except where explicitly overide laws and treaties apply. Spain’s Supreme Court upheld a Volotea clause last year allowing post-booking adjustment for airport tax changes before departure. The court said that clause was not abusive because the change depended on an objective external fact, not Volotea’s unilateral will, and because it was reciprocal — it worked for increases and decreases.

However, airport taxes are third-party levies. Fuel cost is one of the most significant costs an airline always bears in providing transportation. And charging consumers for changes in airport fees and taxes is standard, while fuel price passthroughs are not.

Moreover, the cost of an airport fee is often per-passenger and so directly identifiable and incurred with each ticket. No attempt is being made here to allocate the actual fuel price increase paid by Volotea to each individual consumer. I think they lose here.

Moreover, Volotea’s contract of carriage clause that this rests on requires passengers to have been informed of the possibility during booking – including the methodology applicable to increases or decreases. It certainly does not clearly show that (and there’s no meaningful discussion of methodology for this purpose, let alone ‘thresholds’ and ‘limits’) so I don’t see how this survives the courts, but I’m certainly not an expert of European law. I’d love to hear more from readers familiar with this area of law in Europe, especially Spain.

What Would Make This Acceptable?

One Mile at a Time thinks this is ok, as long as it’s done clearly and fairly.

So if an airline wants to tell passengers that their ticket cost will be based on the cost of providing the service, there’s nothing wrong with that, in theory. The question is, how is this really being measured? Up to €9 can be added per flight, but what is the exact amount based on? What price of oil per barrel is included with the “standard” fare?

I love the suggestion that the airline can adjust fares up or down based on oil prices — I’d be curious to know how often the airline has proactively emailed customers to offer them a refund a week out, due to falling oil prices. 😉

I agree that the trigger is unclear, and that the airline isn’t likely to actually reduce prices when costs fall! But I don’t quite agree that addressing those alone would make it ok. This isn’t a group charter. These aren’t negotiated terms. They’re legal language we do not see exercised frequently buried in a dense contract that consumers aren’t generally aware of.

• This is generally not the deal with a scheduled commercial airline, so no one should be expected to assume that it is.
  
• It’s generally a business’s responsibility to deliver the product they’ve sold. If they’re making sales in advance and don’t want to assume the risk of variable costs, they can hedge those.
  
• Shifting the risks onto the passenger seems inefficient. The airline is in a better position to know and judge the risks as well as hedge them.
  
• If the airline wants to shift that burden, or charge a fee to the consumer to avoid variable pricing risk, that ought to be done in a clear, conspicuous and legal manner.
  
• And any post-purchase price increase – which the consumer knowingly assumed – should come with the option to decline and receive a full refund.

There’s a reason that airlines don’t do this, and it’s not because they are trying to do right by customers (even if there are some who are). It’s a bad practice that most wouldn’t get away with, regardless of jurisdiciton. Nonetheless, it’s fascinating to watch one try.

(HT: Paddle Your Own Kanoo)